Forced Labor Is Not Employment 2013-09-27T20:02:55-06:00

Posted on September 27, 2013

Arizona prisoners are required to “engage in hard labor.” This does not make them employees. In Castle v. Eurofresh, Inc., No. 11-17947 (9th Cir. September 24, 2013), the plaintiff was a state prisoner. A private company contracted with the state for the services of a convict labor force and the plaintiff in this case worked for it. The plaintiff had an ankle injury, but was required to continue working and his request for breaks was denied. The court ruled that when work is required as part of the person’s punishment, the relationship with the company benefitting from the work was not “employment.” The relationship is “penological, not pecuniary.” That ruling didn’t help Arizona as much; the state might still be liable under the under title II of the ADA for failing to protect disabled prisoners from discrimination in benefits, services, programs or activities. Still, however much your employees might complain, they can rest assured there’s a difference between hard labor and wage slavery.

USERRA Reinstatement Requires Consideration of Discretionary Promotions, Too 2013-09-26T19:15:54-06:00

Posted on September 26, 2013

By Brooke Colaizzi

When reinstating an employee returning from military service under USERRA, an employer is required to consider non-automatic, “discretionary” promotions that the employee might have applied for and received had he or she not been absent, at least according to the First Circuit Court of Appeals. Rivera-Melendez v. Pfizer Pharmaceuticals, LLC, No. 12-1023 (1st Cir. Sept. 20, 2013).

USERRA requires that an employer reinstate an employee returning from military service to his or her “escalator” position—the position he or she would have been in had employment not been interrupted. This “escalator” includes automatic promotions such as those based on seniority. In this case, an employee sued, claiming he should have been reinstated to a position that was a promotion and for which he would have had to apply and been selected.

The lower court held that the “escalator” did not include discretionary promotions. The First Circuit reversed, stating that the regulations are clear that employers must reinstate returning employees to the positions they would have held “with reasonable certainty” had they not been away on military service, including positions they would have obtained through a discretionary promotion process. The lower court now has to evaluate the employee’s claim using this correct legal standard.

Having to consider discretionary promotions certainly will make employer obligations under USERRA more challenging.

Wal-Mart Defeats Another Mini-Dukes Class Action 2013-09-25T20:59:38-06:00

Posted on September 25, 2013

By Andy Volin

A federal court in Florida has dismissed class action gender discrimination claims against Wal-Mart, ruling that the class action allegations are barred by the statute of limitations. After the Supreme Court’s 2011 ruling in Wal-Mart Stores, Inc. v. Dukes that a nationwide class action could not be maintained because there was no national policy that impacted the female workers , the employees filed the Florida case (and several others like it around the country) as a regional class action. Wal-Mart has successfully argued in several of the mini-Dukes cases that the Dukes case only tolled the statute of limitations for the individual claims, and not the class action allegations, so that these “second try” class actions have been filed too late. Love v. Wal-Mart Stores, Inc., No. 12-61959-RNS (S.D. Fla. Sept. 23, 2013).

Free Parking 2013-09-18T16:24:15-06:00

Posted on September 18, 2013

By Bill Wright

Reminder: sometimes an easy solution is a reasonable accommodation. In a recent case, an employee suffering from osteoarthritis of the knee asked for free on-site parking at her workplace. Feist v. Louisiana, No. 12-31065 (5th Cir. September 16, 2013). The public employer apparently denied the request; we don’t know why. On appeal, the court allowed a failure to accommodate claim to move forward, noting that the ADA also requires reasonable accommodations that allow employees to enjoy the same benefits of employment. What we don’t know from the published account of this case is whether the public employer had parking available for the employee, whether it would be reasonable to provide free parking, or whether it would have been an undue burden to provide free on-site parking. Let’s hope the employer considered all those issues in the first place.

FMLA Only Seems Easy 2013-09-12T22:23:36-06:00

Posted on September 12, 2013

By Bill Wright

This FMLA case gives the wrong impression. Cuellar v. Keppel Amfels, LLC, No. 12-40165 (5th Cir. September 9, 2013). In this case, the company “leased” workers from a staffing agency. When one worker went out on maternity leave, the company replaced her. (The staffing agency was the primary employer and provided the leave.) When she was done with her leave, the company failed to call the staffing agency to ask for her back. Consequently, she was not reinstated to her old position. In her inevitable lawsuit, the worker claimed the company and the staffing agency had a standard practice: the staffing agency did not send any workers out if the company didn’t ask for them. The worker argued through this practice, the company interfered with the staffing agency reinstating her at the company. The court disagreed. FMLA regulations limit the possible claims against a “secondary employer” that obtains workers from a “primary employer,” such as a staffing agency. The secondary employer does not have the responsibility to pursue reinstatement for the employee.

This case makes the company’s FMLA duties seem easy, BUT the case on appeal did not question whether the company and the staffing agency were joint employers or whether the company was the secondary employer and the staffing agency the primary employer. The case also did not include the staffing company as a defendant. All the issues that will embroil you in litigation were left on the cutting-room floor when the worker developed her appeal. When you lease your workers, watch that lease agreement, as well as your pattern of dealing with the staffing agency.

What Part of “Conciliate” Does The EEOC Not Understand? 2013-09-11T16:50:02-06:00

Posted on September 11, 2013

By John Alan Doran

About a month ago, we posted on a case in which a court imposed an attorneys’ fees award against the EEOC for roughly $4.7 million. (Click here to view post.) Well, here we go again. Just this week, a Federal judge in New York entered a judgment against the EEOC and in favor of Bloomberg L.P. The court’s order specifically invites Bloomberg L.P. to apply for recovery of its attorneys’ fees, which will undoubtedly be very substantial, given that the EEOC brought a combination of class and individual claims against the employer in what can only be described as shock and awe litigation.

The case is particularly noteworthy because it did not turn on whether discrimination did or did not occur. Instead, the case turned on the EEOC’s abject failure to engage in good faith in the mandatory conciliation process Congress demanded when it enacted and amended Title VII. The court noted that the EEOC failed or refused to identify potential individual claimants during its conciliation with the employer, choosing instead to “level broad accusations of class-wide” discrimination, presenting a “moving target of prospective plaintiffs” without disclosing them during pre-suit, mandatory conciliation. Unfortunately, such practices are common with the EEOC in our experience. Hopefully a substantial fee award in this case will convince the EEOC to engage in transparent, meaningful conciliation instead of hide-the-ball, no-holds-barred, faux class litigation.

No Leave Benefit Goes Unpunished 2013-09-09T17:32:17-06:00

Posted on September 9, 2013

By Bill Wright

A worker is injured – seriously injured – and goes out on long term leave. He files a workers compensation claim. The comp. claim stalls and, for 11 years, the employer pays insurance benefits for the worker with no end in sight. Finally, the employer notifies the worker that, if he is unable to return to work, the company will separate his employment. The result? A lawsuit, of course. Brooks v. Pactive Corp., No. 12-1155 (7th Cir. September 6, 2013).

After dismissal in the trial court, the court of appeals resurrected the worker’s claim for workers comp. retaliation. Although it had been 11 years since the worker filed a claim for compensation, negotiations on a settlement had stalled more recently and his medical costs recently soared. The court ruled that it was possible, even plausible given the allegations, that the company had decided to let the worker go at that time because of the workers comp. claim and not because he was unable to perform his job.

Even a decade of patiently providing a worker with insurance benefits is no protection from litigation. We can hope the employer wins on the merits, but it’ll have to face the legal fees.

Thoughts and Feelings 2013-09-05T21:27:13-06:00

Posted on September 5, 2013

By Bill Wright

A plaintiff recently asserted age and sex discrimination claims and attempted to support them with “direct evidence.” The proposed direct evidence, however, was the testimony of two other employees. One testified: “I really think that anyone that was older with more experience [the decision-maker] felt they were threatening to him, and I felt that way personally.” The other testified: “I felt like to other members of the senior leadership team, I felt like my age and perhaps even the fact that I was a female was, I think, a limiting factor.” Not surprisingly, the court found that a plaintiff cannot build a case based on co-workers’ thoughts and feelings. Instead, “direct” evidence requires a “specific link” between the motive of the decision-maker and the adverse employment action. Holmes v. Trinity Health, No. 12-3129 (8th Cir. Sept. 4, 2013).

It is reassuring that courts still require proof to support civil claims. Employees’ feeling and thinking – and even wishing – there was discrimination, without any basis beyond their own speculation, does not cut it.

Posted on September 27, 2013

Posted on September 26, 2013

Posted on September 25, 2013

Posted on September 18, 2013

Posted on September 12, 2013

Posted on September 11, 2013

Posted on September 9, 2013

Posted on September 5, 2013

Email Disclaimer

Email Disclaimer